This photo was taken for the Digital Photography School challenge “Windows” as part of my Photo Challenge Year for 2011. I’ve taken a similar shot to this before and I’ve actually been waiting all week for a cloudy afternoon to take this photo. Finally I got some cloud cover this afternoon and was able to start taking the shot I wanted but I also ended up getting a bit more than I bargained for.
Here’s the situation. The building you see above is a tower block that is part of Toowong Village shopping centre here in Brisbane. A nice great big sheet of sheet glass windows with a blue tinge that reflect wonderfully, making for some great potential photographs.
I was standing off to the side of a footpath area, tripod set up taking shots facing directly up into the sky. I managed to take a grand total of three photos (the one above being the last) before being approached by a security guard who informed me I would need to stop and that I would need to ask building management if I could take any more. Now before anyone starts attacking the guard I believe he did everything by the book:
- He was firm but polite – At no point did he raise his voice nor use any threatening terms or demeanor.
- He repeated a single fact – He did not attempt to enter any arguments, simply repeatedly stated that if I wished to continue I would need to talk to management.
- He did not ask me to delete the already taken photos – At no point did he ask to even see the photos already taken, let alone delete them. It was made clear that the issue was only in “if I wished to continue“
Because I didn’t wish to cause a confrontation I acquiesced to his request, after all this is my local shopping centre and the last thing I need to do is causing myself trouble in it.
This is the first time I’ve had a run in of this kind, even in famously acerbic New York I never once was confronted over taking photos of the outside of a commercial building.
Here’s where it gets interesting. I honestly do believe the security guard was just doing his job and informing me of the policy he was told about by Toowong Village management. So the question would seem to be is this policy actually legal in Australia?
Initially I assumed I was standing on public ground taking a photo of private property which, as far as I know, is perfectly legal. However it appears that Toowong Village private property encompasses the entire block up to and including the walkway I was taking the photo from. Does the fact it’s outside and used as a public thoroughfare make it a de facto public ground? Legally speaking the answer seems to be “probably not”.
Now I knew that photo taking was technically prohibited inside the centre, signs on the door clearly indicate this, but there are no signs outside of the complex, nor does the Toowong Village website seem to have any such listed policy. This does not mean one doesn’t exist but it seems to make it quite hard to comply with a policy you can’t read before hand. UPDATED – See below.
Given I see people with normal cameras and camera phones each and every day taking photos of the tower, why exactly was I singled out? I assume it was because I was using a tripod and DSLR and thus was assumed to be taking photos for commercial purposes (which I wasn’t) and therefore the security guard was dispatched to have a word with me (he came directly from the management building door).
Australian Photography Rights
Numerous people responded to me on twitter asking if I had “waved a photographers right card” at the security guard. The answer to this is no for one simple reason – to the best of my knowledge there is no single unified photographers rights card for Australia. I have seen ones for the USA and the UK but they are both well grounded in those countries actual laws. So far I have not found a simple source of absolute rules for Australia.
I have seen, and have been pointed to, a number of resources regarding photographers rights in Australia. The most common ones I have listed here:
NSW Photo Rights – Australian Street Photography Legal Issues – by far the best resource, written by ex-lawyer with a good deal of experience
All of these are great general resources but you’ll notice they all carry the same disclaimer – they aren’t lawyers and these shouldn’t be used in place of actual legal advice. You’ll also notice there appears to be hundreds of exceptions based around state, type of building and in some cases quite specific venues such as the Sydney Harbour Foreshore. In short photographers rights in Australia appears to be a minefield of potential insanity for which no single nice set of rules can be obtained. This is frustrating but also somewhat of an eye opener.
So that was my interesting little venture into the world of legal rights and photography in modern Australia for the day. I’d love to hear your stories on any similar incidents, whether I’m wrong and there is a single resource for Australian photographers rights somewhere or just if you think I did the right thing or not. Please add comments below!
Update – No Signs Restricting Photography – 29 Jan 2011
During a grocery shopping trip to Toowong Village we decided to double-check the doors to see if my memory of no photography permitted was correct. To my surprise it wasn’t. The doors listed restrictions for dress codes, smoking, skateboards and bicycles but no mention of photography. This brings up further questions over exactly why I was asked to stop photographing the outside of the building when there appears to not even be limitations on photography inside. Next step is to try to contact Toowong Village management and ask for clarification regarding this issue.
Update – Response From Toowong Village Management – 2 February 2011
After a few days waiting I have received a polite and detailed response from the group that manages Toowong Village. The response wasn’t quite what I expected but before I comment any further, here it is:
Thank you for your email received in our office on Monday 31 January. We confirm that our security Guard did follow the correct procedure in this instance by referring you to our Centre Management office.
In response to your queries, we confirm that Toowong Village and Tower is private property. We understand that the area where you had set up your equipment was positioned external to the centre however was still located on the centre’s property. Centre management and the Centre’s owners have a duty of care to provide a safe environment for all patrons and staff who attend the centre. As such, any person or entity erecting or using equipment or displays on the centre’s property are required to meet certain conditions. These conditions include but are not limited to ensuring that the display / equipment is safe, the entity has appropriate public liability insurance cover in place and does not conflict with any other centre conditions that may apply to the specific type of display / equipment being used. This centre policy applies to all entities regardless of whether they are commercial operations, charities or individuals.
Based on the information that you detailed in your email and on your web site, in principle, Centre management would not have had any issue with you taking photographs of the external facade of the property. Conditions would have been imposed on your proposed activity such as providing a barrier around your work area to ensure patrons did not accidentally trip over your equipment and the provision of appropriate public liability insurance cover for the period that you were operating on the premises.
In reference to other comments made on your website, many commercial buildings do have strict policies in relation to activities that may put the property at potential risk. These risks are many and varied however do include such things as not permitting internal photography as those images could potentially be used to document security systems both within the centre as well as individual stores.
In summary, Centre Management is open to any approaches in relation to using the centre for activities outside of normal shopping or business purposes. Consideration will always be given to any potential risks involved in conducting the activity and should those risks be managed and all other conditions complied with, it would be highly unusual for permission not to be granted for the activity by Centre Management.
I trust that this answers your queries.”
- As I had assumed the security guard had indeed done things by the book
- Confirmed that I was indeed on their property at the time and therefore subject to their rules (no argument here)
- The issue seems to have been more about the tripod than the photography itself. I’ll go into more detail on this below
- The don’t exactly specify their policy on internal photography – I’ve asked for clarification
- Overall they have no issue with the photography, they would just like permission asked for first (fair enough)
The problem itself seems to really be centered around my use of a tripod and the potential hazard it could create. I had thought of this and positioned myself well off the walk way in a corner area that no one could easily just wander through and cause themselves harm but I can see their point. You can see they very specifically talk about “appropriate public liability insurance cover” whilst shooting on their premise. Unfortunately it seems that personal responsibility is sometimes seen as an optional extra by some people and their first reaction to having an accident on a commercial premises is to sue them for some insane value of money, regardless if they were actually at fault or not. As a result places like Toowong Village need to make sure they are covered legally in the event they have a run in with this sort of person and this means enforcing the policy on everyone as they clearly state.
All in all the response is measured and reasonably detailed. Some more detail on their policy on internal photography sans tripods or other equipment would be nice and I’ve asked for it. It’s nice to see a commercial entity replying to this kind of inquiry without resorting to threats or other allegations, which I must admit I was expecting as a possible reply.
So what are your views? Do you disagree with their stance? Do you disagree with my stance? I am interested to see other people’s views of this response.
Update – Toowong Village Management Provides Further Clarification – 3 February 2011
I asked for further clarification on their policy specifically relating to photography and they have indeed replied:
Your point is valid in that several images of Toowong Village, both internal and external, are freely available both online and through other sources such as historical records.
Some of these images have been obtained with approval from Management while I’m sure others exist where they have been obtained without approval. It is unrealistic for management to even attempt to control or restrict information/ images that are currently available and so we do not do so unless it is of a litigious nature.
In relation to a company policy for internal photography within the centre we offer the following comment. Given that the nature of requests received by people to take internal photographs of the centre is so varied we believe that each request needs to be assessed on its individual merits. In saying this, in conducting this assessment, our number one priority is to ensure the safety of all involved and to minimise potential risk for all stake holders. These stakeholders include:
- The person taking the photograph – who is at risk of legal action in the event that a person suffers loss as a result of the photographers method of operation eg. tripping over their equipment.
- Patrons who are photographed but may not wish to be, and prior permission is not obtained by the photographer.
- Retailers who do not wish for their stores to be photographed due to various issues but mainly due to the potential of people using the photos to assess their security systems. This information can then be used to plan shop lifting or other illegal activities.
- The centre owners – who are jointly at risk (as it occurs on their property) of legal action in the event that the photographer is found negligent of a proper method of operation and Management has not taken action to remedy or prevent this potential risk to patrons.
As you can see there are many variables to consider when assessing a request for photos to be taken inside the centre. Permission is granted in those cases where Management considers that the risks involved in conducting this activity are appropriately managed.
Our policy is not displayed on our entrances based on the fact that we receive very few requests for photos to be taken in the centre. Nor do we experience many people within the centre taking photos without permission. Should a person be discovered taking photographs on the centre’s property they are directed to Centre Management at which time their request is assessed.
I trust that this addresses the points that you have raised.”
This seems to resolve most of the questions I had and in general seems sane. Comments?